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Published: Fri, 02 Feb 2018

Mills Harm Principle | Free Criminal Law Essay

A central tenet of the liberal ethos on which western legal systems are primarily based is that of negative freedom, to do as one wills, provided that it causes no harm to others. But a question which goes to the heart of the ethics of allowing total individual freedom with minimal intervention from society can be characterised thus; where to draw the line between freedom and censure?

When is interference with private actors and their private morality justified? The harm principle, which seeks to express this crucial qualifier of traditional Hobbesian libertarianism, appears in John Stuart Mill’s philosophical work, ‘On Liberty’, first published in 1859. The principle has informed the development of common law systems and is still cited in debate on key issues of law, such as obscenity and prostitution, abortion and euthanasia.

However, it is not an unmixed pill – the harm principle has often been criticised for its lack of clarity, excessive paternalism, and incomplete handling of certain situations. This essay seeks to examine these criticisms and establish whether the harm principle does, in fact, create as many problems as it solves.

The principle itself reads as follows;

‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.’

As Gerald Dworkin points out, the principle is ‘neither ‘one’ nor ‘very simple”, but� can be dissected on to one limb asserting the right of society to restrict action causing harm to others, and a second limb which notes that resulting harm only to the actor themselves is insufficient grounds for such intervention. Both halves of the principle attracted considerable criticism at the time of its first publication, and I shall deal with each in turn.

Liberty, Equality, Fraternity

The first objection to Mill’s thesis came in 1873, in a rejoinder by Sir James Fitzjames Stephen. Entitled ‘Liberty, Equality, Fraternity‘, it argued that fear of criminal sanction was not the compelling force preventing most people from undertaking criminal acts. Rather, what constrains individual action are religious codes of conduct against which people dare not transgress for fear of sanction in the next life, and webs of social approbation. There is no true distinction between these constraints and those of the law. Stephen appears to have been disgusted by Mill’s having used primarily selfish considerations of self-protection, in the best Hobbesian tradition, to control and regulate morality, rather than higher aims of good behaviour and moral conduct. But the principle accorded so well with the increasingly liberal values of society, and arguably ‘resonates with intuitions most of us have, and with adages that are standard fare in everyday exchanges, and with familiar wisdom about the role of and justification for government’ that the arguments for moral systems of control seemed increasingly frail.

But the key concern with the first limb of the principle seems to me to be illustrated well by the Hart-Devlin debate on legal regulation of morality. In 1957, the Wolfenden Report on Homosexual Offences and Prostitution considered the question and concluded that while the criminal law is there

‘to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others’

there must be ‘a realm of private morality and immorality which is not the law’s business.’

The Enforcement of Morals

As a result of the report, Sir Patrick Devlin, then a High Court judge, and H.L.A. Hart, then lecturing at Stanford University, publicly exchanged their views on the enforcement of morality by the law. The resulting scholarship informs much of the academic debate surrounding the harm principle. Devlin’s The Enforcement of Morals argues that the law should regulate immoral conduct since by its very nature it threatens the ‘politics and morals’ which make up the structure of society. The difficult balance between control and freedom will depend on the ‘intolerance, indignation and disgust’ of ordinary people and a consideration of ‘the maximum individual freedom that is consistent with the integrity of society’.

Hart, on the other hand, takes a typically liberal view and postulates a distinction between harm caused by people being offended by witnessing immorality (taking place in public) and by knowing that immoral conduct takes place (in private). He is delineating the classic liberal public/private divide, a device which Devlin cannot accommodate since he believes morality to be integral to society’s proper functioning. Thus we see the consideration of the harm principle being fundamentally affected by the politics of the observer – while Devlin sees it as allowing intervention to prevent all moral harm, Hart considers it to be limited to intervention to prevent public harm only. We see that the vital question – where do we draw the line? – can be answered differently depending on the liberality or otherwise of the society or the individual making, for example, legal argument – and can be used therefore to support apparently opposing views.�

This raises another question; Hart points out the falsity of the view of all shades of immorality as an indivisible continuum and crucially notes that morality is a societal standard which is subject to change as society itself does, gradually and ‘consistent not only with the preservation of society but with its advance’. Again, the questions of what, precisely, ‘immorality’ and ‘harm’ mean and how different types and categories of harm should be prioritised, if at all, have no precise answer and varies with the timeframe, the society and the individual. One result of this is the perennial shifting of law and acceptable standards over time; another is the constant debate over issues such as abortion and euthanasia.

An empty vessel

This apparent flexibility has lead to some criticism of the principle – one legal commentator has called it ‘an empty vessel, alluring and even irresistible but without any inherent legal or political content, into which advocates can pour whatever substantive views and values they happen to favor’.

The second limb of the principle demands that an individual’s actions should never be circumscribed simply for the good of the actor. This prevents governments from acting to save the individual from himself, and assumes that individuals should be able to be the masters of their own fate and decide for themselves what goals to pursue and what actions to undertake. Hart, on the other hand, gives us a long list of factors which may reduce the significance of free choices, including choices made ‘without adequate reflection or appreciation of the consequences; or in pursuit of merely transitory desires; or in various predicaments when the judgement is likely to be clouded’.

So, either we have complete freedom to harm yourself, or we have a ‘paternalistic’ state able to intervene to prevent you from taking such action. But this is potentially problematic. Where do those who knowingly take risks fit in, such as people who smoke or abuse alcohol? Ultimately their care may cost society heavily in terms of healthcare, and so their actions can be said to be regulated under the first limb of the harm principle – but does this apply also to those who undertake extreme sports?

As our understanding of societal movements and trends has deepened, and as research becomes available into nearly every corner of our lives, so the government seems to feel compelled to act to regulate personal choices, such as the decision to wear seatbelts, and, increasingly, smoking in public. In both these spheres of regulation we see a strong ‘first limb’ ethic – seatbelts were made law because of the substantial reduction in serious injury which would result and the consequent lessening of the burden on the emergency services. A major argument for restricting smoking in public areas has been the effect of passive smoking on the health of others and the burden on healthcare systems of illness caused by smoking. However, in both cases we can see the ‘second limb’ of the harm principle being quietly challenged by an increasingly paternalist state. Seatbelts incontrovertibly protect the wearer, and the smoking restrictions are also intended to make it easier for smokers to give up.

It would seem that in an age where it is possible to make a educated guess at the consequences of nearly every sort of social policy, or lack thereof, non-intervention in the lives of citizens is increasingly portrayed as an irresponsible choice by the government. Public policy debate focuses more on where the line between harm and inconvenience, disapproval and disgust, should fall – a question whose answer is constantly changing with the trends and development of society. Arguably, the harm principle does raise questions – but questions vital to a grounded consideration of difficult social issues.